"(1) CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Single Member Bench Court – I Customs Appeal No. 30337 of 2024 (Arising out of OIA No.VJD-CUSTM-000-APP-001-2024-25 dt.17.04.2024 passed by Commissioner of Customs & Central Tax (Appeals), Guntur) Commissioner of Customs (Preventive), Vijayawada 55-17-3, C-14, Industrial Estate, Autonagar, Vijayawada, AP – 520 007 .... Appellant VERSUS M/s Toyota Kirloskar Motor Pvt Ltd …. Respondent Plot No.1, Bidadi Industrial Area, Bidadi, Ramnagar Dist., Karnataka – 562 109 Appearance Shri A. Rangadham, AR for the Appellant. Ms. Anushka Rastogi, Advocate for the Respondent. Coram: HON'BLE Mr. A.K. JYOTISHI, MEMBER (TECHNICAL) FINAL ORDER NO. A/30379/2024 Date of Hearing: 07.10.2024 Date of Decision: 07.10.2024 [Order per: A.K. JYOTISHI] The Department is in Appeal against OIA dt.17.04.2024 (impugned order), primarily on the ground that the Importer/Respondent had not filed any Appeal against earlier OIA No.VJD-CUSTM-000-APP-056-2022-23 dt.27.01.2023 and therefore, the impugned order of Commissioner (Appeals) dt.17.04.2024 is contradictory to the earlier OIA dt.27.01.2023 in the same matter. 2. The brief facts of the case are that the Importer/Respondent had imported certain automotive parts on which, inter alia, applicable Social Welfare Surcharge (SWS) was initially debited through MEIS scrips. (2) However, subsequently, in terms of Circular dt.10.01.2020, the Importer/Respondent paid an amount of Rs.1,20,201/- in cash. Since they had paid this amount in cash, they subsequently sought refund of the said amount, claiming that since the said amount was already paid through MEIS scrips, this amounts to double payment. The original refund sanctioning authority granted the said refund. However, the Department, on review, challenged the said order by filing Appeal before the Commissioner (Appeals), who, after going through various grounds but primarily on the ground of applicability of limitation and its being time barred, ordered that the refund was not admissible and that the claim was hit by time bar. Admittedly, no Appeal was filed by the Importer/Respondent against the said order of the Commissioner (Appeals). 3. In the meanwhile, Department, as consequence to the said order, also issued SCN dt.11.05.2023 asking them as to why the refund granted erroneously should not be recovered from them. On adjudication, the same was confirmed by the Adjudicating Authority, vide order dt.05.09.2023. On Appeal, the Commissioner (Appeals) has gone through various submissions of Importer/Respondent and circulars as well as provisions of The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (No.38 of 2020) and came to the conclusion that the order passed by the Original Adjudicating Authority considering it as time barred is not correct and that the claim was filed within the limitation, having regard to the order of the Hon’ble Supreme Court dt.10.01.2022 in the matter of cognizance for extension of limitation [2022 (379) ELT 276 (SC)] giving general exclusion for all proceedings falling within period from 15.03.2020 to 28.02.2022. It is this OIA against which the Department is in Appeal on the sole ground that the earlier order of the Commissioner (Appeals) dt.27.01.2023, which had treated the said refund claim as time barred was not appealed against by the Importer/Respondent and therefore, it has attained finality. The Commissioner (Appeals) has erred in again readjudicating the same by way of fresh order and allowing the benefit to the Importer/Respondent. 4. Learned AR has relied on the following case laws in support of his submission that Importer/Respondent can now not come in Appeal for (3) similar matter, which was already decided and has attained finality by again agitating the issue on merit:- a) CC (AIR), Meenambakkam, Chennai Vs Hindustan Petroleum Corporation Ltd [2019 (369) ELT 289 (Mad.)] b) Euro Ceramics Ltd Vs UOI [2017 (354) ELT 23 (Guj.)] c) Vamshi Rubber Ltd Vs CCE, Hyderabad-III [2015 (322) ELT 249 (AP)] 5. He has also reiterated that as already considered by this Bench, this case will not fall under the low revenue category, in view of the fact that this is relating to refund, which has got legal and recurring consequences. 6. On the other hand, learned Advocate for the Importer/Respondent, primarily, pleads that in terms of clear provisions under Section 129A and specifically under 2nd proviso (ii), this Bench, in its discretion, may refuse to admit an Appeal in respect of any order where the amount involved does not exceed two lakh rupees and therefore, the Bench may refuse to admit this Appeal filed by Revenue. She also contends that once the Hon’ble Supreme Court’s order dt.10.01.2022 is considered, it is now settled legal position that the period between 15.03.2020 to 28.02.2022 would have to be excluded for calculation of time limit and admittedly, their claim would thus not be hit by time bar. Therefore, on merit itself, the claim was filed within time limit and had the Commissioner (Appeals) in the first instance, considered this order of Hon’ble Supreme Court, he would not have given the order, though admittedly, they had not filed any Appeal against the said order. 7. Heard both the sides and perused the records. 8. In the facts of the case, it is obvious that there has been a double payment in the sense that payment has been made through MEIS scrips as well as in cash. Admittedly, there is no dispute on eligibility of refund on merit as such. However, it is also obvious that in the first instance, the refund claim was filed beyond the statutory time limit of one year and therefore, the Original Authority should have examined the claim within the four walls of the statutory provisions. In subsequent proceedings, the Commissioner (Appeals) has taken into account the interpretation of certain exclusion of period due to COVID etc., in terms of Taxation and Other Laws (Relaxation of certain provisions) Ordinance, 2020 and came to the (4) conclusion that even after allowing this, the original statutory time limit would not have been adhered and therefore, the refund was required to be rejected as time barred. In the consequential proceedings, though the department has relied on the logic taken by the Commissioner (Appeals) for considering the claim as time barred and confirmation of the demand for erroneous refund, the Commissioner (Appeals) in the impugned order has considered the judgment of the Hon’ble Supreme Court dt.10.01.2022 (supra), according to which the claim was admittedly filed within the time limit. Therefore, certain facts are very clear that there is payment of SWS twice and that the earlier Appellate Authority has not considered the judgment of Hon’ble Supreme Court dt.10.01.2022 (supra) giving general exclusion. At the same time, there is also substantive force in the arguments made by the Department that once the order of the Commissioner (Appeals) had attained finality, rightly or wrongly, the Importer/Respondent can now not reopen the same issue by going through the Appeal in the proceedings relating to consequential recovery of erroneous refund. They have also relied on certain judgments of Hon’ble High Courts, supra. Therefore, it appears that both the sides have certain points and issues in their support and substantive law points and order may have different interpretations. 9. Therefore, in the facts of the case, I am inclined to agree with the submissions of the learned Advocate that this Bench, in its discretion, may refuse to admit the Appeal on the ground of its being less than Rs.2 lakhs. I find that due to unique facts of the case and in the interest of justice, the Departmental Appeal need not be pursued any further and therefore, in exercise of my discretion, I do not admit the Appeal of the Department. However, it is also clarified that all the questions of law are kept open. 10. Appeal disposed of accordingly. (Dictated and pronounced in the open Court) (A.K. JYOTISHI) MEMBER (TECHNICAL) Veda "